August 23, 2005

Where one woman bears the child, but the other woman is part of a couple, planning for the birth and raising the newborn, the woman who did not give birth is considered one of the child's parents and has rights and support obligations when the couple splits up. It did not matter that the nonbirth parent had not adopted the child.

The NYT provides the predictable "traditional values" quote:

"You've essentially begun to undermine and unravel the family," said Mathew D. Staver of Liberty Counsel, a law firm that submitted briefs arguing against the recognition of two same-sex parents.

I'd like to see a quote from a traditionalist who wasn't the lawyer in this case. Do social conservatives really want to privilege the birth mother's relationship but also cut her off from a source of financial support? Lesbians will have babies, whether you like it or not. Why is it worse to preserve that child's relationships and preserve private sources of funds for raising it? Or do we already know social conservatives are total pushovers for slippery slope arguments about the dreaded gay marriage?

The linked article doesn't talk about how the decision might be used to argue for imposing support obligations on a man who doesn't marry but lives with a woman who is pregnant with someone else's child and who stays with the woman but never adopts the child. That strikes me as a much more likely slope to slip down.

In one of the decisions, the nonbirth mother had donated her egg and signed the sort of form that men sign to cut off their rights when they donate sperm.

Justice Werdegar, dissenting, suggested that treating the donation of sperm differently from the donation of an egg "inappropriately confers rights and imposes disabilities on persons because of their sexual orientation" and so "may well violate equal protection."

Unlike the rest of the three cases the state court decided, this ruling presents a federal question and could go to the United States Supreme Court.

UPDATE: I think if there were gay marriage and gay adoption there would be LESS need for decisions like this, which introduce a new set of problems about nonbiological parents asseting rights or finding themselves bound to obligations. The formalities of marriage and adoption create clarity about the relationship between parents and children. If these formalities are available to gay persons, courts will not feel so much of a pull toward solutions like the one the California court devised.

52 comments:

The traditionalist view continues to be focused on the concept of only one type of acceptable family and that's the traditional nuclear family centered around a married mom and dad.

That's ironic given the diversity of families throughout history, including in this country. For example, it wasn't too long ago in US history that hand-fasting was an acceptable form of marriage (showing the act of committing is far more important than the how of it). And of course, throughout history families morphed into all sorts of shapes because of parental deaths (necessitating other adults take over child-rearing),extended families, and also inheritence concerns/benefits.

Speaking as a lesbian, I see no reason why a lesbian that helped conceive a child by her acts should be given any more of a free ride from child support when the partnership dissolves any more than the divorcing father should be. And I also believe the father is equally responsible in situations where the child is born out of wedlock. The exception is sperm donors, though, and there are legal documents involved to severe parental rights, making a clear line.

The irony is that it could very well lead to stronger gay relationships to the bane of the traditionalists because the potential for increased responsibility might (hopefully) confer increased acts of responsibility, of which making a commitment qualifies.

Ann wrote: "Or do we already know social conservatives are total pushovers for slippery slope arguments about the dreaded gay marriage?"

But are we not in fact headed in that direction? People may not agree that gay marriage is a bad or good thing, but is there not a move down a slope ("down" not being used as pejorative, but as the direction down the slope...) towards gay marriage? Perhaps it's a climb up the mountain to gay marriage. Whatever the metaphor it seems inevitable based on court cases coming down. I guess we'll see in 10 or 20 years.

Roaring: I wouldn't caricature the "traditionalist view" as focusing on "acceptable" familiy structures. Yes, many unfortunately use zero sum terms like that. Most of us (and I'm guilty -- I'm a traditionalist -- whatever that is) think and know that the married mom--dad scenario is the best alternative -- not the "only" one. If I were dictator I might not allow gay adoption or marriage (but I might...), but I live in a liberal civil democracy and I live and work with the compromises and consequences of that. (And thank God I'm not dictator or anyone else for that matter :) ) I make political arguments for those aspects of society I can, vote, and live with the vote. Er.. I mean the votes of a handful of justices.

Oh! and my bane is hardly stronger gay relationships. I'm actually too busy with work and three kids to much think of gay relationships. Income tax is my bane thank you.

I think this is a great example of why civil unions of some sort (whether marriage or something else) need to be available to gay people.

I don't think it is right to confer parental responsibilities on a boyfriend or girlfriend unless the boyfriend or girlfriend has conceived or adopted the child. However, if the people were married or "unioned" or whatever, they would have made a commitment to share responsibilities. The lack of civil unions seems to leave these gay relationships in a sort of limbo. Are they committed-committed? Are they committed enough to treat them like married people? I don't think the court should get to dictate this. I think there should be some mechanism, as there is in marriage for heterosexual couples, for the people to define the commitment level of their relationships themselves.

I agree that the slippery slope Ann describes is much more likely, and it's not a slope that I like.

As a traditionalist, I approach the raising of children as an ideal best represented by a man and a woman. Why?

I tend to assume that 1) men and women are equal, yet each having unique qualities and 2) children from the time they are born deserve access to this "equality of uniqueness" found in having a male AND a female in their lives.

There is something in each sex that needs to be imparted to the child, and further, there is something in observing how the sexes relate to each other that teaches the child.

If we assume that in all aspects of society, men and women are unique, yet equal (and hasn't the argument for women in the workplace been one of focusing on equality of opportunity and unique contribution), I cannot see how we can suddenly arrive at the conclusion that a child can be best served by nullifying the unique direct contribution of the male or female biological partner. (And I don't by into the oft put forth argument that the "village" is full of the opposite sex and that gay friendly Bob next door or cousin Jimmy would be an adequate replacement for the missing male parent).

As to such legal cases granting two mothers equal status in relation to the child, it just seems perverse from an emotional and biological perspective. The conclusions from such an example would suggest that there is in fact no inherent biological primacy or relevance. I would wonder, years later, how a child might feel knowing that he has been raised by his non-biological mother, when in fact he also has a biological mother.

Usually when these cases occur, invariably the biological mother reverts to biological primacy as a reason for being able to keep the child, and I am not wholly sure if the female gay community would support (in actual practice) laws that insure financial support while lessening their biological primacy.

Or rather, they will in theory only, with the actuality being a rather crowded court docket when the personal trumps the political.

I do think that kids are best raised with a parent of each sex present. Or at least a strong role model of each sex playing a big part in their lives.

But then I come to adoption, and have to say that in many cases, kids are probably better off with a Gay or Lesbian couple than in foster care.

But this is a bit different. Currently, domestic law seems heavily stacked against men. We can get carried away some night, and years later find that we have "fathered" a child that we have to support, but because we weren't there for some critical parts of the kid's life, we don't get much, if any, visitation.

The woman on the other hand has an absolute right to decide whether or not to carry the kid to term. She can abort, regardless of the guy's feelings on the matter, and, similarly, she can carry to term, again regardless of his feelings, and then hit him for child support for the next 18 years, while often denying him visitation.

Two things. What of the girl born into a family with five brothers, and her mother dies when she's six months old? She's living with her male father and five male siblings, and the male father is unable to go out and acquire a suitable female to take on the traditional and unique role of woman of the house. I suppose we should condemn the father for raising his daughter without the influence of a woman? Remember, aunts don't count!

And: "I would wonder, years later, how a child might feel knowing that he has been raised by his non-biological mother, when in fact he also has a biological mother."

If you're so curious, why don't you find one of the billions of people that have been adopted over the course of time and ask him.

"But then I come to adoption, and have to say that in many cases, kids are probably better off with a Gay or Lesbian couple than in foster care."

Bruce - Would you care to explain this statement further? Are you suggesting that there is a weakness to foster care that is remedied by being raised by same-sex parents? Or are you saying that being raised by ANY kind of parents is better than foster care?

Also, as an adoptive dad, I'd like to remind everyone that:

(1) Adoption and foster care are separate things. Many adopted kids have never entered foster care. So a comparison between being adopted and being in foster care just doesn't work.

(2) Parenting and biology are also separate things. My wife and I have a beautiful daughter, adopted from China, and we are definitely her parents. Parenting has a lot more to do with psychological attachment and the social responsibility of providing for a child's needs. So basing an argument having to do with parenting on some purely biological concept doesn't really work either.

Why limit it to two parents? Why not, for example, two couples living in the same house and sharing in the duties of raising all the kids? Could really help with expenses, stress, learning, etc. Then again, just two people trying to parent is difficult, suggesting that four (or more) team closely together for a number of years might be nutty.

I am not suggesting that all adoptive kids spent time in foster care, but rather that if unwanted kids are not adopted, many end up in foster care. And I do appreciate that you are giving your kid(s) the gift of loving parents.

Yes, many foster parents are quite good and dedicated. But we are constantly finding out that there are many who are not. Some are in it for the money. Some for the sex. The first is not good. The second, extremely bad.

Maybe I should put it in a hierarchy of what I think is in the best interests of kids:- two natural parents who love the kid. - two married hetrosexuals (or at least one of each sex), one of whom is a natural parent who love the kid.- two married hetrosexuals, adopting and loving the kid. - two committed homosexuals in a stable long term relationship adopting and loving the kid.- with one or more natural parents who don't love the kid.- with one or more surrogate parents who love the kid.- with one or more surrogate parents who don't love the kid.

This isn't absolute, but you should hopefully get an idea of where I am coming from.

That is one reason that (IMHO) polygamy has more credability to me than does Gay Marriage. You have the advantage of having more than two parents to share the load. But you also have the closer bond that you typically get with biological children. All the kids being raised together are essentially at least half-sibs.

Just communal raising of kids just doesn't seem to work. One good example of this is supposedly the experiences of Kibbutz relatively early in the Israeli experience. The kids were supposed to be raised communally. That was the theory. But, in the end, it apparently fell apart since parents really do want to spend more quality time with their own kids.

(1) I think the term "unwanted" is a bit extreme when referring to kids in foster care. Plenty of kids end up in foster care for reasons besides not being "wanted" by their biological parents.

(2) If you take this paragraph you wrote: "Yes, many foster parents are quite good and dedicated. But we are constantly finding out that there are many who are not. Some are in it for the money. Some for the sex. The first is not good. The second, extremely bad." -- and cross out the word "foster", nothing changes. (OK, you'd probably have to remove the thing about being in it for the money.) This is true of any parent in any situation. Going from a foster care situation to being adopted brings no guarantees of quality of life.

(3) I think you mean "biological" when you use the word "natural" in reference to parents. Otherwise the connotation is that "non-biological" = "unnatural", which as you can imagine I strongly disagree with. Being my daughter's dad seems awfully "natural" to me, even though she doesn't share a shred of my DNA.

(4) If I'm right about (3), then I have to take strong issue with your heirarchy that places adoptive parenting in third place below biological parenting in terms of what's good for a kid -- a ranking that appears to be founded purely on the basis of biology alone. I think it's a gigantic -- and fallacious -- stretch to suggest that being with biological parents is better for kids than being with adoptive parents, just because one is biological and the other isn't. If you've got more backup for that hierarchy, I'd like to see it.

(Sorry if I'm hijacking the thread here, but I think at issue is the concept of "parenting" in general and I think adoptive parenting has something to say about that.)

I absolutely believe children benefit from receiving both masculine and feminine influences in their life and, it needs to be reflected back to them in different ways (that is, how mom interacts with girls versus how dad does). However, I think it's simplistic to assume those influences have to come from a father and a mother. In fact, I'd say that's limiting.

Perhaps I'm making assumptions from my own life. In numerous key areas (learning to ride a bike, games, etc) I experienced more a fatherly influence from a friend's father than my own.

And while my mother showed me much about being a woman, I also looked to a wide array of others to learn from them. Aunts, teachers, other neighborhood mothers, etc.

Apparently only conservatives are aware that it still takes both a egg and a sperm to produce a child.

Anyone can parent a child, and a child can have a step, adopted, foster, or surrogate parent, but until the court the changes the laws of biology, their pronouncement is fatuous, at best.

The notion that any child born into a marriage or domestic partnership automatically belongs to both partners is ludicrous in the days of DNA testing when courts are severing men's financial responsibilities for children that were born into an existing marriage and raised by men who turned out not to be their biological fathers afterall.

Quite frankly yes -- even a modestly "dysfunctional" husband/wife team is better than the alternatives I believe. Much research says so.

Now today's (or should I say since the '60s when a "happy marriage:" was redefined as 24/7 fulfilling to ME, happiness for ME, meeting MY needs, and the rest of the post-modern self-esteem self centeredness crap.

Believe it or not most parents could make a go of it. Because many decide to bail out says more about them than it does marriage. And 2 of the people I love the most called it quits -- aka Mom and Dad. My Dad could've made it work -- he didn't. Is marriage bad? No -- my Dad was (and I know it takes 2 to tango blah blah blah).

Mary wrote: "Because, as others have suggested, we could introduce a variety of individual factors that might cause you to rethink your positions."

The problem is that people so focus on the individual aspects and failure of individual marriages that the general principle gets lost: Married heterosexual couples make -- on balance -- the best environment for reporducing and raising children.Just because there are some individual examples of the opposite does not eradicate the general rule.I grew up and had a few years of Ward and June Cleaver and later I saw the consequences of selfishness and divorce on my younger siblings. My parents marriage sucked -- not because marriage is bad, but because the individuals involved to some degree wouldn't make it work.

Bottom line: In a pluralistic society I will live with whatever the people decide. My problem is that the courts are deciding because one side seems to not have much faith in democracy -- in persuading me of the merits of their argument. I've been a lawyer for 12 years now and one thing I know for a fact -- lawyers/judges have no greater insight into what is right and moral than anyone else -- certainly not to a degree that I would chuck voting over court decisions.

Zone5 -- In a sense our society already has forms of multi-parent pairs raising a child. They're called remarried parents.

But if the bigger issue you bring up is the ohmygod allowing gay marriage will lead to polygamy, then I'm of the increasing libertarian view of why is that a problem? That is, if polygamy is entered into truly by choice and not through enforcement or cohersion.

It's not something I want for myself, nor would stand for. And, I think women tend to get shorter shift in polygamous relationships. (And no one even mentions the idea of one woman and multiple husbands).

However, if it's what consenting adults want, there is historical precedance for it...

Clarification "Modestly dysfunctional" means a normal amount of bickering neurotic insecurities, etc. that most people have (or perhaps it IS just me!!) since no one is perfect. "Normal" probably needs to be redefined as more dysfunctional than we like to admit publicly.

Every time I talk about these issues, I get hammered from both sides, but here goes.

Most of the "social conservatives" who are fearful of the slippery slope moving toward gay marriage are Christians. I suppose that one would consider me a "traditional Christian." When the denomination of which I'm a part, the Evangelical Lutheran Church in America, recently voted not to allow the performance of same-sex unions or to ordain practicing homosexuals, I was relieved. This has nothing to do with a desire to single out one behavior or lifestyle as more sinful than another or to say that I'm less of a sinner than every other human being. And God knows that I would prefer not having to fly in the face of what is politically correct and culturally accepted. But I feel that the Church would be failing God and people if we acted as though some behaviors opposed by God were okay.

Having said that, I cannot understand why some Christians feel that their marriages or even the institution of marriage as established by God is threatened by the prospect of a state-established marriage-like institution for gays and lesbians. No member of the Christian clergy could be compelled to perform ceremonies of union for such couples. Nor would the Church be compelled to recognize such relationships as anything other than legal arrangements.

The Times' article you cite, Ann, notes that the California justices were forced to address issues to which current law had little relevance. That's too bad, because the fact is that, like it or not, people are entering such relationships. For the sake of children who may be involved and to decrease the financial tangles that can happen when homosexual relationships, like those of heterosexuals, go bust, it seems to me that the state and society in general have an interest in regulating homosexual as well as heterosexual relationships. So long as the rights of others are not impinged upon in any way, I can't imagine why Christians should feel threatened if states establish a marriage-like institution for gays and lesbians.

An analogy suggests itself to me. Many Christians are opposed to the consumption of any alcohol; but the sale of wine and beer doesn't threaten their lifestyle. Drinkers pursue their societal rights; non-drinkers do as well. The same could be true of those who believe in and those who oppose homosexual marriage.

Christian faith is not coercive. Authentic faith in Christ is the result not of having that faith drilled into us. We are persuaded to follow Christ as the result of persuasion, empowered, we believe, by God's Holy Spirit.

Therefore, Christians have no interest in establishing a sort of theocracy or in imposing our particular brand of morality on others, even if we believe that brand of morality represents God's revealed will for the human race.

If we Christians are really interested in having an impact on the way society conducts its business, the answer is not to force our views down others' throats. The answer is to lovingly share Christ with others, precisely as Christ has commanded us to do.

Authentic Christian faith is utterly countercultural. When Christians choose to try coercing others into doing things their ways, they're engaging in conventional, bullying power politics. Such tactics may, for a time, cause people to acquiesce to our pushiness, but we'll be far from accomplishing what Jesus has sent us into the world to do: Helping people move close to God by sharing Christ with them and allowing them the freedom God wants all people to have, the freedom to choose between following Christ or going our own ways. I'm convinced when people have the choice, prompted by God's love, they'll follow Christ. So, why would I be worried if the state establishes gay marriage?

mark: Very well said. However, I oppose gay marriage, etc. because I think it's bad social policy too.

Christians are allowed to take their beliefs and translate them into public policy via the political process. Everyone else does -- why should Christians be excluded? Someone's belief in a non-traditional god, supreme being or an atheist can proceed, but those who believe in the "God who is there" or the God of the Bible must check their beliefs at the door? No thanks.

I happen to think it's immoral and bad policy. That doesn't make me judgmental (which we are allowed to judge behavior -- an oft mis-translated bit of scripture) or homophobic or hate-filled.

If gay marriage wins the debate I'll live with it and live my life -- like I've always done. The problem is -- there won't be a debate because some know-it-all judge will remove the topic from debate and give the gay marriage side the argument and once again the people will be screwed out of a debate. Scalia's Planned Parenthood v. Casey dissent spells it out exactly though in an abortion context. The courts will rip this wide open and create much more controversy than there needs to be.

It seems that if a lesbian woman had a biological child and wanted her partner to also adopt the child, that partner would then have all the same rights and responsibilities as the biological mother. Along the same logic, a biological mother should be able to give up her legal right to a child (and responsibilities) if the law allows (i.e., giving a child up for adoption).

I would not agree with providing rights or charging responsbilities on someone who was not a biological parent or who had not adopted the child (obviously there could be exceptions based on circumstances).

In general, I think that children are better off with a married mother and father as opposed to a same sex couple. However, I don't think same sex couples being parents is some sort of abomination that will bring down the West.

I agree with Mark. I'm also a "traditional Christian." "Evangelical" even. I go to one of those "bible-thumping" non-denominational churches. But I also see a huge difference between Christian marriage and state marriage. I don't think that we should equate the two, and I don't think that non-Christians should be forced to conform to Christian marriage in order to get a state marriage.

The problem with the case has nothing to do with the rights of the non-child bearing adult caregiver. The problem is the court asserting the existence of a parent child relationship in the absence of a state law providing such relationship. No, there is no reason what both parents of a child cannot be women (or men), but absent a statute creating such relationships with children, courts have no business creating such relationships. Period. Time to rein in the runaway nuts in black robes.

Richard Fagin wrote, "No, there is no reason what both parents of a child cannot be women (or men), but absent a statute creating such relationships with children, courts have no business creating such relationships."

I disagree. The courts didn't create the relationship, the lesbian parents did. A legal issue arose that required fair and equitable resolution and the courts did their job--and did it well in my view.

Insisting that some legislative and/or executive body or other enact a statute for every aspect of our lives sounds like a slippery slope toward totalitarianism to me. I vote no on that.

I don't trust the majority to care about minority interests. What historical example should make me reconsider?

The so-called gay marraige slope doesn't seem that slippery to me. It feels more like a slowly inclining grade. The same sex marraige debate puts liberty and democracy at odds. I'm on the side of liberty.

You seem to disregard the fact that men and women, while *generally* are in possession of distinct characteristics, both of which are important to rearing children, that not *every* man and *every* woman has the sexual characteristics of their gender.

Heck, it’s pretty hard to even draw a clear *physical* line between men and women. Don’t believe me? http://www.isna.org/

So is it really that hard to believe that a woman can be born with a “masculine” brain? Or a man can be born with a feminine level of empathy?

I firmly believe that multiple parent homes where one parent stays home (it can be either a man or a woman, but *someone* should be with the child at all times) are the one of the best models of childrearing, but I can’t say that this ideal is hard and fast because there are so many natural variations between individuals. Perhaps these women don’t fit into the “norms” of their gender and only a cruel and callous person would force another into a role for which they are not fit!

Frankly, having known people who grew up in a two-parent married family where the father was abusive, and known children who grew up in the hands of two loving, empathetic and moral gay men, and children who grew up with moral loving empathetic heterosexual couples, I have to say I've not seen a difference between the last two. I have seen a difference between the results of the first two.

Would you think it was "liberty" if you were in a same sex relationship, your partner had a child, and you were saddled with parental responsibilities by court mandate? Shouldn't you have a say in that?

Sorry, been tied up for a bit. As I indicated, my scale is rough and extremely generalized. My comment on foster care was designed to average in both good and bad foster care. As to adoption, I am rethinking my position. One thing that can be said about adoptive parents is that thtey are (IMHO) usually more motivated than average to do a good job parenting. So, maybe I should bring it up in my "hierarchy". Also, in many cases, adoptive parents are able to provide much more financially than the biological parents could. (and, sorry, but another poster is right - "biological" is a better term than "natural" for what I was trying to say).

But I will stand with my view that, all things equal, at least one male parent and at least one female parent is preferable to all parents of the same sex, whether that is one, two, or more. But, then, IMHO, two of the same sex is probably better than one, again, all things being equal.

IMHO, there are aspects of masculinity that will be missed by having only female parents, and elements of femininity missed by having only male parents.

Finally, as to polygamy, yes, I know of Eugene Volokh's slippery slope argument. That wasn't my point though. Rather, I was only suggesting that, all things being equal, a polygamous marriage was better than a Gay or Lesbian couple raising kids in that both sexes of parents were present. Someone commented on the more than one issue, and that was the natural corrolary.

Someone commented about non-biological fathers not being stuck with the bill. But I have read at least one (I believe CA) case where precisely the opposite occurred.

A kid was born in wedlock. The unsuspecting husband put his name on the birth certificate. Later, he found that his wife was unfaithful. He had genetic testing done on the kid. The court said tough. By law, he was the "father", regardless of genetics. Kids born in wedlock in most, if not all, states are presumptively the children of the husbands of the mothers. AND it is in the best interests of the kids if there is someone there to pay to support the kids. So, the fact that he wasn't the biological father wasn't important. He was the legal father.

But then, it appears in CA in particular, that some women are going fishing for fathers. Everyone in the phone book with a given name is legally served, and the one who doesn't show up to defend himself is assumed by the courts to be the father, and, thus, is liable for child support.

www.daybydaycartoon.com had a great take on this awhile back. Sam, one of the female characters was served this way for paternity. She proved that she wasn't the father by baring her breasts to the judge. (But what about transgenders?)

If you notice in my post, I talked of "an ideal" and I think anyone of reasonable intellect can see the point I am making, whether agreeing or disagreeing. And because you are intelligent, you know my point.

Surely, in the real world, and due to misfortune or the curves in live, we end up in situations where children are orphaned or raised by one parent (or other variations). My own nieces were raised by just their mother after the death of their father. I am hard pressed to say that their life without their father is of equal or better import, or has necessarily produced better results.

Mary/Diane:

You use examples of two bad hetero parents to argue that a single parent (and by implication, alternative parenting situations) might be better. You say:

Two bickering, permanently incompatible married mom-dad people, v. single responsible, hardworking parent who allows children to maintain a healthy relationship with the former spouse when he/she can participate in the child's life... Married mom-dad scenario still best?)

Indeed Mary we can always create permutations of an ideal, and then compare the impaired ideal to an idealized non-ideal. In your specific example above though, most studies would show that children are worse off with single parenthood.

However, I would argue that in the same way we have a range (a bell curve if you will) of styles of hetero parenting, producing both better and lesser children, it is reasonable to assume gay parents would produce the same spectrum of results (on a separate curve of results). However, if we compared the best examples of each, we would still come out with a group of kids who were shortchanged by not experiencing in tandem the unique things that a man, and a woman, can offer.

My point was a simple one. That if we can agree in society that men and women are equal, and that even if the workplace demands recognition of that, then we should hardly push for a situation where children don't receive the valuable input of each sex in a direct and sustained method.

A man with one leg can surely make do with a prosthesis, and we can not fault him for that condition, but we should hardly suggest that a man with two legs would do just fine, or better, without the input of both legs.

If you don't see our society and legal situation as being on a slippery slope towards gay marriage (to which I am not opposed), then you aren't paying attention.

Maybe--maybe--the conservatives can hold the line for another 20 years. But I doubt it. It would take a supreme effort on their part (and possibly require them to compromise on other issues in order to rally around the marriage issue)... I don't see it happening.

Chuck said: "The courts didn't create the relationship, the lesbian parents did. A legal issue arose that required fair and equitable resolution and the courts did their job--and did it well in my view." Well, no. Parent is a legal status, not merely a relationship status. It is conferred by statute in most states by biology or by adoption. Having the legal status of parent carries certain duties, including the duty of support and supervision. In most every state, the parent child relationship is already governed by statute enacted by legislature. The court in this case created a legal status between the child and one adult with no legislated power to do so. The woman claiming the relationship only needed to undergo the formality of adopting the child to have the desired legal status.

I hardly see how requiring legislation for a court to act in an area of the law that is already essentially completely defined by legislation constitutes totalitarianism. The very fact that the lesbian couple was able to conceive is a creature of technology, not biology. It is not sensible to talk of some natural right to parenthood that a non child bearing same sex adult has with respect to a child, because the existence of the child is itself not a creation of nature. What is the wrong in having the political branch of government decide what is the approrpriate legal status of two human beings, whose very relationship is a human technolgical creation? Chuck's response is based on a belief that fallure of political (elected) branches of government to enact his personal policy preferences is per se a denial of basic rights.

My understanding in reading the post is that the lesbian partner didn't just parachute into an pre-existing mother-child relationship. Rather the partner was an active participation in the conception of the child (active in this case, of course, participating in the process of the insemination by someone's sperm). This is a completely different situation than one in which someone casually moved into a preexisting household. That's the main reason why I believe the lesbian partner should be held accountable, in the same way a man fathering a child out of wedlock (or a married husband seeking to divorce) should be held accountable.

The gay community wants increased marriage rights because of a stated desire for stability and legitmacy. As a lesbian, I support the desire, although I'm perfectly okay with civil unions rather than demanding religious marriages.

However, rights go both ways. If we want more benefits of marriage and family, then we also have to be willing to bear the costs. And I'm a believer in doing so.

Well, some men can't produce sperm either, which is one of two major causes of adoption. Should we not allow them to be part of an adoptive couple then, since they're missing a key male ingredient?

Mark--I've no problem with your brand of Christian faith or beliefs. Mine hold room for gay orientation but I respect your open-heartedness and willingness to live and let live.

Troy -- I obviously disagree with you regarding the morality of gay orientation. However, I agree with you that the issue of gay marriage, or unions if you prefer, is one for the legislature and not the courts, aka non-elected officials, to determine. And the state legislature, unless we plan on making federal marriage laws across the board for heterosexual marriages too.

Roaring... I'll try to get you links to studies. It's been awhile since I did any serious debating of the issue so I don't (and never did have) a "Studies showing superiority of hetero vs. homosexual marriage" file. Besides I find that filename too cumbersome for MS Word. :)

I'm actually in favor of civil unions if only to preserve some status -- again as social policy -- which happens to reflect my moral view also -- for marriage as a best way for kids. Morally -- the state's blessing is ultimately unimportant to me since God -- not California -- joined me to my wife (sounds like surgery).

It goes back to the lawyer's question in the Good Samaritan... "Who is my neighbor?"

Roaring... There are 2 researchers from USC Stacey and Biblarz who are most often quoted as saying there are quanitifiable differences as to the differences between children raised in same-sex and hetero households. They reviewed studies from the mid '80s to the late '90s. They found that the results showed significant differences but were under-reported because of the political implications -- they were afraid they would be used by the right as ammunition or that they would be excoriated by the left. Whether the differences would be considered good or bad would of course depend on one's worldview.

Of course -- how the results of those studies is interpreted is tainted to the nth degree by politics from each side. The right over-inflates the differences and the left under emphasizes any differences.

All the studies I could find from the APA would be interpreted by me one way, but could be read by you to support your view too. That, my friend, is why I hate social science. :)

I'll back off my hyperbolic overstatement because the studies violate my principal that social science is not hard science and is not quantifiable and is subject to mis and disinterpretation and because I'm a nice guy. I'll stick to the legal and political arguments and forego wearing a sociologist hat.

Troy: I love the way gays should be denied the right to marry (or enter civil unions, or whatever) simply to preserve your ability to debate about it. I hadn't realized that there were people whose purpose for living were simply to make the lives of conservatives more interesting! That's good to know!

I'm not a traditionalist with regards to the various family oriented rights, responsibilities, and laws. I think everyone should take a step back and determine what the best legalistic framework for these relationships would be while ignoring the traditional/religious frameworks that causes these issues to be fraught with drama.

I think there should be NO state sanctioning of marriages, either in support of heterosexual, or in denial of homosexual or polyamorous unions. Religious people can still get married in their church, but there would be no implied contract to go with a religious marriage. If a couple(or more) of adults (child marriage should be viewed as statutory rape, period) want to be contractually obligated for each other's care than they should do so through contract law.

If the system was reformed in this manner then a new system with regards to children would have to be formed. I believe that a workable system would be for there to be three adults responsible for each child, a primary, secondary and tertiary guardian.

The default primary parent would be the biological mother, unless some other agreement has been arranged. She (or who she appoints as primary parent) would select (with the other parties agreement) the secondary and tertiary parent. The secondary parent could be custodial or non-custodial but would share financial responsibility for the child and the tertiary parent would be non-custodial and not responsible financially, but would be obligated to become responsible if either the primary or secondary parent were incapacitated or dead. Teen mothers would complicate this system, but their primary guardian could be considered the infant's guardian until the teen demonstrated the capacity to be the primary parent.

This would place alot more responsibility on women to make sure that any man they choose to get them pregnant would actually be man enough to accept that responsibility . It would also mean that any man who wants to be part of their biological child's life has to make sure their relationship with the mother is strong enough that she will choose to name him as the secondary parent. Just as he wouldn't be under any obligation to care for his biological child, she wouldn't be obligated to allow him access to their child unless he was willing to be responsible.

This is how most people arrange for the care of children, anyway, but they do so through custom rather than by thinking about it, and this would recognize this as being the most advantageous situation for children and one that the state should sponsor.

This system would allow for 3 women, 3 men, or any mix of adults to be responsible in a legally binding way for the next 18 years of that child's life and it would end all the confusions that we now have given the mixture of biology and custom that confuses who should be responsible for a particular child.

I know this is pie in the sky stuff, but I think a system like this would work far better than the patchwork mess that is family court in most states and would alleviate the hostility towards men in family court as the role of each parent would be clearly delineated at the birth of each child.

The current system is not perceived to be sufficiently broken to be fixed this radically, but I think as long as tradition and biology form the basis for family law there will be strong resistance to liberalizing the definitions of who can marry and who should be a parent (and people will continue to see the constitution as supporting both sides of the argument).

Troy: And I quote: "The problem is -- there won't be a debate because some know-it-all judge will remove the topic from debate and give the gay marriage side the argument and once again the people will be screwed out of a debate."

By your own words, a judge's decision to give gays the right to marry doesn't give millions of people the rights they deserve, it simply removes a hot topic out of your debate circuit. This is exactly what you wrote. What am I missing exactly?

"...I would wonder, years later, how a child might feel knowing that he has been raised by his non-biological mother, when in fact he also has a biological mother....

Finn, this is an interesting question that some may be surpised by the answer. In my association with adoption, how a biological child reacts to meeting their biological parents is a mixed bag. Some strike relationships with their parents, others don't want to have anything to do with them. Some only want to know about them (where they are from) but do not have any desire to meet them.

I actually don't think gay marriage is that big a deal. I don't think it will bring down western civilization and could actually stablize some gay famalies. (Although I think the legislatures should pass the measure and not the courts).

However, I wonder if society would ever treat gay marriage in the same way as a traditional marriage. I.e. would cheating in a gay marriage carry the same societal taboo. Would people naturally feel some relief if they heard about a couple getting a divorce but found out later the couple was gay?

Would a gay couple's marriage really be equal if their adoption rights were subordinated to heterosexual couples? Probably not. What about international adoptions? What if Russia, China or Korea said no gay adoptions (which they say). Would we have to ban international adoptions to keep marriage rights equal in America.

Some say that you can achieve these social changes through changes in the law first. But, this isn't always true. For example, the law has provided no fault divorce for some time, yet society still looks to lay blame on one of the parties in the divorce. This can have serious repercussions socially for an individual despite not being recognized in the law.

Just a couple of stray thoughts, though. I tend to be a bit suspicious of sociological studies on the issue because I question how much impact is due solely to parents and how much is due to societal pressures/stigma. In other words, would results be different if society showed more acceptance of gay couples? Perhaps a correlary would be the stigma attached to being a bastard (in the literal sense of the word) 100 years ago versus today.

That said, I need to read some the research before making more than my passing statement.

Leroy -- You have an interesting and quite radical idea for reforming marriage and child-care issues. Given the degree of its radical nature of the child issues, I'm not sure it would fly but it makes a dandy opening for discussing marriage and its obligations.

One thing I do like is separating out the contractural aspects of marriage from the religious. Given a little more time, I think this could even be possible and it would certainly alleviate a lot of the angst around gay marriage/unions.

In a sense, it's a radical but retro, returning to a time when marriages were perceived to be contracts first and foremost, negotiated and agreed to. I'm especially thinking of the time when even breaking an engagement could have serious legal consequences.

Roaring... I agree on the sociological research, which is why I backed off my over-emphasized on "much research". It's a tad incongruous to cite to research and then not fully trust it. Sorry.

Ploopus... Read Scalia's dissent in Planned Parenthood v. Casey. He summarizes it exactly. Perhaps you were not aware, but in a DEMOCRACY --debate is the key.

Courts deciding this issue for all of us is like the NFL awarding the Super Bowl trophy to a team before the playoffs.

I can live with the decision -- most of people who share many of my views can, but we would like a little political compromise, debate, and persuasion. You don't want to be dictated to by me. What makes you think I want to be dictated by you? THat's what the democratic political process is supposed to be about, with Courts as the safety net -- not the default process for political questions.

This has nothing to do with me personally. The courts are not supposed to decide political questions -- even though they do. Abortion, gay rights, et al. are more controversial than they have to be precisely because the courts removed them from direct political compromise.

Bruce writes: "A kid was born in wedlock. The unsuspecting husband put his name on the birth certificate. Later, he found that his wife was unfaithful. He had genetic testing done on the kid. The court said tough. By law, he was the "father", regardless of genetics. Kids born in wedlock in most, if not all, states are presumptively the children of the husbands of the mothers. AND it is in the best interests of the kids if there is someone there to pay to support the kids. So, the fact that he wasn't the biological father wasn't important. He was the legal father."

This is the famous Michael H. case. California law conclusively presumes the child belongs to the husband. The presumption is based on a combination of probability and a belief that it's good for the child. If lesbians could marry, this presumption could be used to make the woman who doesn't give birth be the other parent and exclude the biological father as the parent.

It gets as high as 1 in 100 when you count in Kleinfelders and other hormonal issues.

All I’m saying is that the lines *are* blurred, and these are just the most obvious cases. You *can’t* point to these people and say “That is a man! That is a woman!” with any kind of accuracy. If you can’t even sort all of the people into the two categories, then who’s to say that you can sort out the *minds* of people into two categories. That’s outright stupid. Having gender distinctions this hard and fast before we know everything about sorting out genders seems like jumping the gun to me. If gender were “obvious” and my argument were “stupid” these people wouldn’t exist.

Finn:Actually, I was not saying that at all. First, I don’t think single parenting is a good idea in general. No matter what, parenting is a hard job and people*need* help. Second, I was saying that even if you have a man and woman living together, you are not guaranteed all of the “the valuable input of each sex in a direct and sustained method”

My point is that there is a huge amount of variation between individuals of a gender, and I see this as a slippery slope of not allowing effeminate men to marry and father children off of heterosexual women. Or masculine women to marry and mother children. I know many lesbian relationships with a “Butch” and a “Femme” who do a much better job parenting and exposing their children to the plethora of traits endemic in each gender.

Besides, I’m still waiting for proof that gay unions produce dysfunctional children. I have yet to see any.